Articles Posted in Work Visas

There are many bars to changing status and adjusting status, and overstaying the visa is not the only problem. Unlawful employment can create several problems when one seeks to adjust status in the US.

Unlawful employment occurs quite frequently when the line between being a visitor for business and actual employment is crossed. Situations where this commonly occurs for performers and athletes are one-time appearances for which remuneration is paid incorrectly, self-employment, or providing volunteer services for which bonuses are later intended to be paid once a legitimate visa is obtained.

Appearing on Jay Leno to promote a project is fine, but getting paid to host a segment of Disney Channel is probably not. Performing at weddings, bar mitzvahs, and parties is also a problem if you were paid, and it may be a problem if you received something “inkind.”

Slightly sooner than expected but the H1B cap was reached today. U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap- subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after Jan. 26, 2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

U.S. Citizenship and Immigration Services (USCIS) announced that as of January 21, 2011, it has received 62,800 H-1B petitions counting toward the congressionally-mandated 65,000 limit. Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the “H-1B cap.” Under the terms of the legislation implementing the United States-Chile and United States-Singapore Free Trade Agreements, 6,800 of the 65,000 available H-1B visas are set aside for the Chile/Singapore H-1B1 program. However, USCIS adds back to the H-1B cap the projected number of unused Chile/Singapore H-1B1 visas, which for this fiscal year is 6,350. This means that, of the approximately 64,550 H-1B visas available this year, approximately 1,750 remained as of January 21, 2011.

USCIS previously confirmed that it has received 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities, thus reaching the annual limit on H-1B petitions in the advanced degree category. Accordingly, additional H-1B petitions received in this category will be adjudicated under the general 65,000 cap.

USCIS has historically accepted a greater number of H-1B petitions than the number available for approval under the cap based on the assumption that some petitions will be denied, rejected or withdrawn.

Great update from AILA border Liaison for the benefit of our readers. Although Canadian nonimmigrants are largely visa-exempt, the non-Canadian dependent of a principal Canadian must be issued a visa to present for inspection and admission to the U.S. Visa issuance for L-2 non-Canadian dependents of L-1 beneficiaries whose petitions were submitted and approved at a port of entry or preclearance location have been problematic because, until recently, L-1 petitions submitted and approved at ports of entry or preclearance locations were not sent to the U.S. Department of State, Kentucky Consular Center (KCC) for entry into the Petition Information Management System (PIMS).

Visa issuance for TD non-Canadian dependents faced similar challenges, as no mechanism was in place to forward approvals of TN applications (consisting of only the TN letter) at the Port of Entry to the KCC for entry into PIMS.

Consular posts require confirmation of the principal Canadian’s approval of TN or L-1 application through a PIMS entry for a non-Canadian dependent’s visa application before they may issue visas to dependent L-2 and TD spouses and children. Thus, non-Canadian dependent spouses and children were unable to obtain visas, or visa issuance was significantly delayed.

In this Bog article we discuss the very unfamiliar area of H3 visas for the Hospitality Industry. The very talented attorney Kate Powell from our office has been very successful in crafting and getting approved numerous such cases, and her summary is presented below.

The H-3 nonimmigrant visa category is available for aliens coming temporarily to the United States as either a:

• Trainee to receive training, other than graduate or medical education training, that is not available in the alien’s home country or

I previously reported on changes to the H2B visa program. This is a notice on the identification of foreign countries whose nationals are eligible to participate in the H-2A and the H-2B nonimmigrant worker programs. The notice becomes effective when it is published in the Federal Register on 1/18/11.

Under Department of Homeland Security (DHS) regulations, U.S. Citizenship and Immigration Services (USCIS) may approve petitions for H-2A and H-2B nonimmigrant status only for nationals of countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated by notice published in the Federal Register. That notice must be renewed each year. This notice announces that the Secretary of Homeland Security, in consultation with the Secretary of State, is identifying 53 countries whose nationals are eligible to participate in the H-2A and H-2B programs for the coming year.

Nationals from the following countries are eligible to participate in the H-2A and H-2B nonimmigrant worker programs:

Yes we still have H1B visas available. U.S. Citizenship and Immigration Services (USCIS) announced that as of December 31, 2010, it has received 57,300 H-1B petitions counting toward the congressionally-mandated 65,000 limit.

Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the “H-1B cap.” Under the terms of the legislation implementing the United States-Chile and United States-Singapore Free Trade Agreements, 6,800 of the 65,000 available H-1B visas are set aside for the Chile/Singapore H-1B1 program. However, USCIS adds back to the H-1B cap the projected number of unused Chile/Singapore H-1B1 visas, which for this fiscal year is 6,350. This means that, of the approximately 64,550 H-1B visas available this year, around 7,250 remained as of December 31, 2010.

USCIS previously confirmed that it has received 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities, thus reaching the annual limit on H-1B petitions in the advanced degree category. Accordingly, additional H-1B petitions received in this category will be adjudicated under the general 65,000 cap.

As Lawyers specializing in Investment visas we often get questions from clients about the amount of investment needed for an E2 visa and what money can be used to invest. The source of the funds is a key determination for any successful E2 case.

The E2 visa is a special non-immigrant visa available to nationals of treaty countries entering the US to do the following:

a.) Develop and direct the operations of an enterprise in which they have invested, or are actively in the process of investing a substantial amount of capital;

We recently learned that USCIS is planning to publish proposed rule to establish a mandatory, Internet-based, electronic registration process for U.S. employers seeking to file H-1B petitions for workers that are subject to either the 65,000 or 20,000 annual numerical limitations.

This rule proposes an electronic registration program for petitions subject to numerical limitations contained in the Immigration and Nationality Act. Initially, the program would be for the H-1B nonimmigrant classification; however, other nonimmigrant classifications will be added as needed.

This action is necessary because the demand for H-1B specialty occupation workers by U.S. companies generally exceeds the numerical limitation. This rule is intended to allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions. We are concerned that large H1B filers may find a way to abuse the registration system, leaving smaller employers at a risk of loosing visas.

In light of the increase in RFEs focused on the employer-employee relationship, right to control, and availability of “qualifying employment” at third-party worksites, here are some suggestions in order to maximize the likelihood of securing a three-year H-1B extension for petitions involving placement at third-party worksites:

1. Submit a certified labor condition application (LCA) that lists multiple work locations, including the Petitioner’s home office address, as well as the third-party worksite location(s);

2. Document “qualifying employment” for the Beneficiary at the third-party worksite through End-Client letters confirming a project duration of longer than a year, preferably for the entire three years if the requested validity is three years;